Enviro Tech International, Inc. v. Corp New Ventures Services
Claim Number: FA1604001671545
Complainant is Enviro Tech International, Inc. (“Complainant”), represented by Craig A. Beaker of Marshall, Gerstein & Borun LLP, Illinois, United States. Respondent is Corp New Ventures Services (“Respondent”), Pennsylvania, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ensolv.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 21, 2016; the Forum received payment on April 21, 2016.
On Apr 21, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <ensolv.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 26, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 16, 2016 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@ensolv.com. Also on April 26, 2016, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On May 17, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Since at least as early as 1996, Complainant has used the ENSOLV mark in connection with industrial chemicals and solvents, specifically industrial degreasing, vapor degreasing, and cleaning solvents. Complainant has registered the ENSOLV mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,142,549, registered March 10, 1998), which demonstrates Complainant’s rights in its mark. The Panel is directed to Attached Exhibit B for a copy of Complainant’s USPTO registration. The <ensolv.com> domain is identical to Complainant’s mark, save for the affixation of the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed domain name. First, Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Second, Respondent is not licensed or authorized to use Complainant’s mark. Finally, Respondent is not make a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain to market goods that are directly competitive with Complainant’s goods offered under its mark. The Panel is directed to Attached Exhibit I for screenshots of Respondent’s resolving webpages.
Respondent has registered and is using the disputed domain name in bad faith. First, Respondent’s use of the domain to market goods that are in direct competition with Complainant’s business disrupts and competes with Complainant. Second, Respondent uses the domain to divert potential customers of Complainant’s business by capitalizing on confused Internet users, for commercial gain. Finally, Respondent had constructive and/or actual knowledge of Complainant’s mark at the time the domain was registered.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was originally registered by Complainant on January 28, 1997. Complainant inadvertently allowed the domain to lapse, and Respondent registered it on or about October 21, 2014.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid and subsisting trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Panel finds that the Complainant has adequately pled its rights in or to its trademark. The disputed domain name is confusingly similar to the Complainant’s trademark as it consists of the precise trademark plus the gTLD “.com.” This is inadequate to distinguish the disputed domain name from the Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
Also, there is no evidence in the record that indicates the Respondent has rights or legitimate interests in or to the disputed domain name. Respondent apparently is not commonly known by the disputed domain name or any variant of Complainant’s mark. Further, Respondent appears to have no license or authorization to use Complainant’s mark. The WHOIS information merely lists “Corp New Ventures Services” as registrant. Respondent has failed to provide any evidence for the Panel’s consideration.
As such, the Panel finds no basis in the available record to find Respondent commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii).
Furthermore, Respondent apparently is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Specifically, Respondent uses its disputed domain name to market a vapor degreaser that is directly competitive with Complainant’s goods offered under its mark. Attached Exhibit I shows screenshots of Respondent’s resolving webpages.
Therefore, the Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii) and, as such, lacks any rights or legitimate interests in or to the disputed domain name.
Complainant argues that Respondent’s use of the domain to market goods that are in direct competition with Complainant’s business disrupts and competes with Complainant. Respondent apparently uses the disputed domain name to market a vapor degreaser that is directly competitive with a product offered by Complainant under its mark. Panels have determined that a respondent’s use of a disputed domain name to promote goods and/or services that are directly competitive with a complainant’s business constitutes bad faith registration and use per Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Accordingly, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii).
Complainant contends that Respondent uses the domain to divert potential customers of Complainant’s business by capitalizing on confused Internet users, for commercial gain. Panels have concluded that a respondent engages in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where it uses a domain for the purpose of promoting goods and/or services that are in direct competition with a complainant’s business. See Scholastic Inc. v. Applied Software Solutions, Inc., D2000-1629 (WIPO Mar. 15, 2001) (finding bad faith under Policy ¶ 4(b)(iv) because the respondent initially used the disputed domain name to sell educational services that targeted the complainant’s market).
For this reason, the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Finally, Complainant alleges that based on the fame and longstanding use the ENSOLV mark, Respondent must have had constructive and/or actual knowledge of Complainant’s mark at the time the domain was registered. Complainant also argues that Respondent’s use of the domain to promote a product that is directly competitive with Complainant’s business is clear evidence that Respondent registered the domain with knowledge of the ENSOLV mark. While panels have concluded that constructive notice is not sufficient to support a bad faith finding, the Panel finds that, due to the fame of Complainant’s mark and/or Respondent’s use of the disputed domain name, Respondent had actual knowledge of the mark and Complainant’s rights.
Thus, given the totality of the circumstances, the Panel finds that Respondent registered the disputed domain in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ensolv.com> domain name TRANSFERRED from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: May 17, 2016
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